from the regulatory-trojan-horse dept

As we've been noting for a while, the FCC's 3-2 vote to kill net neutrality is really only the beginning of a new chapter in the fight for a healthy, competitive internet. The rules won't truly be repealed until 60 days after they hit the federal register in January. And even then, the repeal will have to survive a multi-pronged legal assault against the FCC, accusing it of ignoring the public interest, ignoring feedback from countless experts, and turning a blind eye to all of the procedural oddities that occurred during its proceeding (like, oh, the fact that only dead and artificial people appear to support what the FCC is up to).

ISPs know that this legal fight faces a steep uphill battle with all of the procedural missteps at the FCC. That's why we've been warning for a while that ISPs (and their army of think tankers, sock puppets, consultants, and other allies) will soon begin pushing hard for a new net neutrality law. One that professes to "put this whole debate to bed," but contains so many loopholes as to be useless. The real purpose of such a law? To codify federal net neutrality apathy into law, and to prevent the FCC from simply passing tougher rules down the road.

Just like clockwork, Comcast responded to last week's net neutrality killing vote with a blog post by top Comcast lobbyist David Cohen (the company, for the record, hates it when you call Cohen a lobbyist) calling for a new, Comcast-approved law. Cohen declares that it's "time for Congress to act and permanently preserve the internet," while repeatedly and comically trying to downplay Comcast's own role in the chaos we're currently witnessing:

"Unfortunately, there are others who want to continue engaging in a never ending game of back and forth, creating unnecessary anxiety and contributing to an unneeded level of hysteria. Some will undoubtedly continue threatening litigation that does nothing to protect consumers or freedom of the Internet."

Funny, since the one doing the litigating is Comcast, which sued to overturn both the FCC's 2010 and 2015 net neutrality protections. Regardless, Cohen would have you believe that the only path forward at this point is the creation of a new net neutrality law. One, Cohen knows very well would be quite literally written by Comcast thanks to our campaign-cash-slathered Congress. Such a law would, Comcast argues, end the "regulatory ping pong" that Comcast itself is perpetuating:

"It’s now time for all of us to take advantage of this moment in time and end the cycle of regulatory ping pong we’ve been trapped in for over a decade and put this issue to rest once and for all. And there’s a simple way to do this -- we really must have bipartisan congressional legislation to permanently preserve and solidify net neutrality protections for consumers and to provide ongoing certainty to ISPs and edge providers alike."

So what would a Comcast-approved net neutrality law look like? Comcast has repeatedly made it clear that it supports a ban on the blatant throttling or blocking of websites and services by ISPs, since that's not something ISPs were interested in doing anyway. ISPs long ago realized there's an ocean of more subtle ways to abuse a lack of competition in the broadband market. For example. why block Netflix outright (and risk a massive PR backlash) when you can impose arbitrary and unnecessary usage caps and overage fees that only apply to Netflix, not Comcast's own content?

So, expect any Comcast-approved law to outlaw all of the things large ISPs never intended to do, while ignoring all of the more subtle areas that the net neutrality fight has evolved to cover. For example, a Comcast-approved law won't even mention caps or zero rating. Nor will it address the shenanigans we've seen on the interconnection front. But any Comcast-approved law will include ample loopholes allowing Comcast to do pretty much whatever it likes provided it ambiguously suggests it's for the health of the network (a major problem in the FCC's flimsy 2010 rules).

Since he played a starring role the last time ISPs tried this, expect Senator John Thune to play a starring role in this effort. You should also expect an ocean of editorials from ISP-funded policy folk (where financial conflicts of interest aren't disclosed) to start popping up on websites and newspapers nationwide insisting a net neutrality law is the only path forward and that anybody that opposes this push simply isn't being reasonable.

And while many lawmakers and media folk will be tempted to support this push arguing it's better than no rules at all that's not really true. If flimsy and poorly-written, this new Comcast-approved legislation could simply codify federal net neutrality apathy into law, while banning any future FCCs' or Congress' (say, a theoretical one not quite so beholden to ISP cash) from passing real protections down the line. The best bet at stopping this net neutrality repeal currently rests with the courts. Should that fail we can revisit this conversation, but only if voters are able to drive ISP-loyal marionettes out of office.

from the goes-around-comes-around dept

After regulators blocked AT&T's attempted acquisition of T-Mobile, T-Mobile found a new lease on life and began delivering some much-needed competition to the wireless sector. That added competition brought numerous benefits to consumers, from forcing AT&T and Verizon to bring back unlimited data plans, to the elimination of long-term contracts. And while these companies still try to avoid competing too intently on price, T-Mobile's disruption has been hugely beneficial all the same.

That said, T-Mobile's consumer-friendly brand identity (driven by trash-talking CEO John Legere) often only goes so far. The company has consistently opposed net neutrality rules, at one point insisting this opposition would put the company on the "right side of history." When people questioned T-Mobile's positions (and a lot of the outright bullshit it used to justify its own zero rating and throttling), Legere doubled down by attacking the EFF.

So it's interesting to see the company's announcement this week that it would be jumping into the television business and challenging traditional cable operators. According to T-Mobile, they've also acquired a streaming video operator by the name of Layer3TV, whose technology will be used to fuel the new service scheduled to arrive sometime in 2018. While details and pricing are non-existent, Legere quite justly took the opportunity to make fun of the cable industry's high prices and horrible customer service reputation:

"People love their TV, but they hate their TV providers. And worse, they have no real choice but to simply take it – the crappy customer service, clunky technology and outrageous bills loaded with fees! That’s where we come in. We’re gonna fix the pain points and bring real choice to consumers across the country,” said John Legere, president and CEO of T-Mobile. “It only makes sense for the Un-carrier to do to TV what we’re doing to wireless: change it for good! Personally, I can’t wait to start fighting for consumers here!”

But T-Mobile's previous disdain for net neutrality rules could easily come back to bite it. T-Mobile did state the service will be offered over both wireless and the fixed-line broadband networks of industry giants like Comcast. And with net neutrality rules set to be destroyed this week, there will soon be nothing stopping Comcast from using any number of tricks to make T-Mobile's entry into the market more difficult.

Without net neutrality rules there's about a million ways Comcast could harm T-Mobile TV, based entirely on things broadband ISPs have already done. Comcast could let its interconnection points congest forcing T-Mobile to pay significantly more money just for packets to reach Comcast customers without delay. If that doesn't work, Comcast could use its arbitrary and unnecessary usage caps to penalize T-Mobile's new offering while letting Comcast's own services through untouched (aka zero rating). T-Mobile's service could also be throttled or deprioritized, while deeper-pocketed competitors pay to get preferential treatment.

And that's all just things Comcast is on record having already done. With no net neutrality rules in place, and the FCC and FTC poised to be little more than rubber stamps for entrenched telecom duopolies, there's really no limit to the "creative" approaches incumbent ISPs will take to protect their turf. Of course since T-Mobile helped enable this with its opposition to net neutrality, it surely won't mind as companies like Comcast do everything in their power to harm T-Mobile's TV efforts while driving up operating costs via a rotating array of unnecessary troll tolls, right?

from the that-was-then,-this-is-now dept

Despite having spent millions on repealing broadband privacy and soon net neutrality, Comcast's lobbyists and PR folks have spent the last few weeks claiming that nobody has anything to worry about because Comcast would never do anything to harm consumers or competitors. This glorified pinky swear is likely going to be cold comfort for the millions of consumers, small businesses, startups, and entrepreneurs trying to build something (or god forbid directly compete with Comcast NBC Universal) over the next decade.

But while Comcast is busy trying to convince everyone that gutting regulatory oversight over an uncompetitive broadband market will only result in wonderful things, they're simultaneously back peddling on past claims to not violate net neutrality.

Earlier this week, Ars Technica penned an article discussing how Comcast's past promises to not engage in "paid prioritization" have magically disappeared. Paid prioritization is the act of letting one company (say, Comcast-owned NBC) buy a faster, lower-latency pipe than its competitors. Obviously, such a scenario creates a market whereby deep-pocketed companies can pay for an unfair advantage over startups, non-profits, or smaller companies. That's not to be confused with enterprise prioritization or the prioritization of medical services, though that's a conflation Comcast lobbyists really enjoy making.

Back in 2014 when the debate was at its peak regarding the creation of the 2015 rules, Comcast repeatedly promised that paid prioritization would never be something it engaged in. Ars does a solid job highlighting how this promise has all-but disappeared from Comcast and Comcast-backed NCTA lobbying and policy materials over the last few years. This apparently angered Comcast PR rep Sena Fitzmaurice, who has previously and repeatedly yelled at me for calling Comcast's top lobbyist a lobbyist (you're supposed to call him Comcast's "Chief Diversity Officer" to help him tap dance around lobbying disclosure rules).

Fitzmaurice spent most of the day on Twitter trying to direct annoyed readers to an alternate, less skeptical CNET article, while insisting that Ars story author Jon Brodkin had somehow hallucinated Comcast's backtracking:

Brodkin, in turn, pointed out that Fitzmaurice repeatedly dodged hard questions about said backtracking, while hiding behind semantics:

Interesting how you never denied my point that Comcast's public statements changed from "no paid prioritization" to "no anticompetitive prioritization," and that you didn't answer my followup email yesterday cc @maggie_reardon

He then penned a second article, with the help of the Internet Wayback Machine, highlighting very clearly how Comcast pulled all references to its promise to not engage in "paid prioritization." Much of this purging occurred, coincidentally, the very same day that Ajit Pai first announced his plan to roll back the net neutrality protections:

That statement remained on the page until April 26 of this year, according to page captures from the Internet Archive's WayBack Machine. But on April 27, the paid prioritization pledge was nowhere to be found on that page and remains absent now.

What changed? It was on April 26 that FCC Chairman Ajit Pai announced the first version of his plan to eliminate net neutrality rules. Since then, Pai has finalized his repeal plan, and the FCC will vote to drop the rules on December 14.

To drive home the point, Brodkin posted a screen shot of the Comcast website pledge before the FCC announced its repeal of the rules on April 27:

And then after the FCC made it clear it was going to ignore the public and dismantle the rules:

You'll note, perhaps, that Comcast's promises get shorter and shorter the closer it gets to achieving its goal of fewer consumer protections. Oddly, Fitzmaurice has yet to complain about the updated version of the Ars story.

The idea that Comcast will take full advantage of the one two-punch of limited competition and apathetic regulators is all but a certainty according to history. It's likely that for a year or two after repeal, Comcast and other ISPs will avoid getting too heavy handed in the hopes of convincing folks that net neutrality worries were over-stated. After that, you can be fairly certain that Comcast will slowly but surely engage in tricks old and new to leverage a lack of competition to its full, tactical advantage. You can also be fairly certain that while this is happening, you'll be told you're most definitely hallucinating the entire affair.

from the why-we-can't-have-nice-things dept

There's numerous methods incumbent ISPs use to keep broadband competition at bay, from buying protectionist state laws to a steady supply of revolving door regulators and lobbyists with a vested interest in protecting the status quo. This regulatory capture goes a long way toward explaining why Americans pay more money for slower broadband than most developed nations. Keeping this dysfunction intact despite a growing resentment from America's under-served and over-charged broadband consumers isn't easy, and has required decades of yeoman's work on the part of entrenched duopolies and their lobbyists.

Case in point: Google Fiber recently tried to build new fiber networks in a large number of cities like Nashville and Louisville, but ran face first into an antiquated utility pole attachment process. As it stands, when a new competitor tries to enter a market, it needs to contact each individual ISP to have them move their own utility pole gear. This convoluted and bureaucratic process can take months, and incumbent ISPs (which often own the poles in question) often slow things down even further by intentionally dragging their feet.

So in cities like Nashville and Louisville, Google Fiber and other competitors have pushed for so-called "one touch make ready" utility pole reform. These reforms let a licensed and insured contractor move any ISP's pole-mounted gear if necessary (usually a matter of inches), as long as the ISP is notified in advance and the contractor pays for any damages. Under these regulatory reforms, the pole attachment process can be reduced from six months or more to just a month or so -- dramatically speeding up fiber deployment. ISPs like Verizon (in part because Google Fiber isn't encroaching on their East Coast turf) have supported the changes.

But because this would accelerate competitor broadband deployments as well, incumbent ISPs like AT&T, Comcast and Charter Spectrum did what they do best: they filed nuisance lawsuits against both Nashville and Louisville -- claiming they'd exceeded their legal authority in updating the rules. The companies proclaim they're simply concerned about the potential damage to their lines (ignored is the fact that the contractors doing the work are often the same people employed by ISPs), but the lawsuits are driven by one thing: fear of competition.

In Louisville this tactic didn't work so well, with a Judge ruling that the city was perfectly within its legal rights to manage the city's utility poles. ISPs had claimed that these cities' authority was over-ridden by FCC rules, though even the FCC itself backed Google Fiber and the cities in this fight (obviously this position, like most pro-competitive policies, were reversed when Trump appointed Ajit Pai to head the FCC last fall).

"We're reviewing today's court ruling to understand its potential impact on our build in Nashville," a Google spokesperson said. "We have made significant progress with new innovative deployment techniques in some areas of the city, but access to poles remains an important issue where underground deployment is not a possibility."

There's several reasons Google Fiber announced last fall that it was pivoting toward wireless/fiber hybrid deployments. One was the high cost and slow pace of fiber deployment, but another was the kind of legal and regulatory roadblocks being erected by the likes of AT&T, Charter and Comcast, who are utterly terrified at the faintest specter of competition disrupting their all-too-cozy markets. Google Fiber has managed to avoid some of these obstacles via technologies like microtrenching, but the incumbent ISP goal of slowing the rise of competition has proven successful overall.

from the one-born-every-minute dept

Despite the nation's biggest ISP and cable company having spent millions of dollars and lobbying man hours on repealing broadband privacy rules and soon net neutrality protections, executives at the least-liked company in America hope you're dumb enough to believe they won't be taking full advantage.

Comcast has spent months now falsely claiming that it will still adhere to "net neutrality" once the FCC's rules are gutted by Ajit Pai. But the company's pet definition of net neutrality is so narrow as to be effectively meaningless. For example, last week as the FCC was trying to hide its obvious handout to telecom duopolies behind the cranberry and stuffing, Comcast issued a tweet again insisting that you can trust them to be on their best behavior despite the fact there will soon be no meaningful rules holding their feet to the fire:

We do not and will not block, throttle, or discriminate against lawful content. We will continue to make sure that our policies are clear and transparent for consumers, and we will not change our commitment to these principles. pic.twitter.com/YHDADvFqau

Comcast would have you ignore the fact that net neutrality violations are just a symptom of a lack of competition in the broadband market. They'd also like you to ignore that there's a myriad of ways that ISPs like Comcast have taken advantage of this lack of competition to engage in even worse anti-competitive behavior, with "throttling" and "blocking" just being a small subsection. For example, a lack of competition lets Comcast impose arbitrary and unnecessary usage caps and overage fees, then exempt its own content from those caps while penalizing direct competitors like Netflix.

Comcast also hopes you've forgotten this debate began, in part, when Comcast decided to throttle the upstream traffic of all BitTorrent users on the Comcast network without telling anybody, then lied about it repeatedly.
Similarly, Comcast hopes you don't realize that as people grew wise to ham-fisted throttling and blocking, ISPs began abusing net neutrality in other, more "creative" ways -- like intentionally letting peering points congest in order to drive up costs for transit and content operators who foolishly wanted their traffic to reach consumers unimpeded (aka "double dipping," or less generously: extortion).

There's a reason Comcast and other large ISPs are happily promising not to throttle or outright "block" websites: large ISPs now know it's hard to get away with either now that the public and press are more savvy to what they've been up to. They know that blatantly throttling or blocking a website completely would generate a tidal wave of negative PR.

Anybody that honestly believes that uncompetitive duopolies won't take full, brutal advantage of limited competition and incompetent/corrupt regulators is ignoring history and fooling themselves. Fortunately, most people seem to understand that when it comes to not abusing a lack of competition, large, incumbent telecom providers are the very last companies in America you should trust:

We never will, but it’s very important that we be able to. But we won’t. So let us do it. Because we won’t do it. Which is why we’re spending so much money to make sure we can. But we won’t. But let us. https://t.co/6f3qJupZRS

from the not-at-all dept

I want to start out this post by making a key point: I know that it's become fashionable to launch into personal and ad hominem attacks on people we disagree with politically of late. We've sought to avoid doing that here on Techdirt, even if we often will criticize people and their positions in stark terms. Over the past few days, however, the ad hominem attacks on FCC chair Ajit Pai by some have been absolutely disgraceful -- and absolutely counterproductive. I disagree with Pai quite a lot (as you'll see below). But the venom and attacks he's received from many are not just unfair and misguided, but only serve to bolster the idea that the people arguing against him are unhinged from reality. I've met Pai a few times and have found him to be both thoughtful and intelligent. I still believe that he is deeply misguided about multiple important issues, but we can debate those issues without resorting to personal attacks. I hope that others will follow suit.

Ever since Ajit Pai became chair of the FCC he's been systematically undoing more or less everything his predecessor, Tom Wheeler, accomplished during his (perhaps surprisingly) effective chairmanship. To do that, Pai has engaged in a series of statements and positions that, at best, have involved misrepresentations of reality. There are a number of these that may be worth exploring, but I want to focus on one that I'll refer to as Ajit Pai's Big Lie, because it's the key argument he's made, underlining his reasoning for chucking out the existing net neutrality rules. Here is the opening paragraph from the FAQ that Pai released last week, setting out his reasoning... and also succinctly presenting Ajit Pai's Big Lie:

Over twenty years ago, President Clinton and a Republican Congress established the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet . . . unfettered by Federal or State regulation.” For decades, Commission policies encouraged broadband deployment and the development of the Internet. That ended two years ago. In 2015, the Commission imposed heavy-handed, utility-style regulation on Internet service providers (ISPs). Since then, broadband investment has fallen for two years in a row—the first time that that’s happened outside a recession in the Internet era. And new services have been delayed or scuttled by a regulatory environment that stifles innovation.

You might think that the "Big Lie" is the idea that the 2015 rules killed investment. And that is a lie. Actual evidence from financial reports has proven that completely false repeatedly. But, that's a smaller lie here. Ajit Pai's Big Lie is the idea that gutting all net neutrality protections is somehow returning FCC policy to the way things were two years ago, and that "for decades" the FCC kept out of this debate. All of that is wrong. And, unlike the other lie concerning investment -- where Pai and others can fiddle with numbers to make his claims look right -- Ajit Pai knows that the Big Lie is false.

Pai likes to point back to the Telecommunications Act of 1996 as his starting point in claiming that the internet is free from regulations, and suggests that things just changed with the 2015 FCC order. But he literally knows this is wrong. First of all, for all his talk of using 1996 as the starting date to show "decades" of supposedly unchanged FCC positions on this, he conveniently leaves out that the FCC didn't actually classify cable broadband as an information service... until 2002. That's from the FCC's own announcement about it. And this was fought out in court, eventually leading to the Brand X Supreme Court ruling in 2005 that said the FCC had the right to determine if broadband was an information service or a telco service (which is why the 2015 order has been upheld).

And, even then, telco (i.e., DSL) based broadband was still classified under Title II. It was only in 2005 that the FCC officially reclassified telco-based broadband as an information service, rather than a Title II covered telco service. This move actually stripped broadband of the one feature that had created the most competitive markets: the requirement to share their lines.

So, as a starting point, the idea that there's been a consistent policy position from 1996 until 2015 is simply wrong. The FCC itself changed the classification of broadband providers in 2002 and again in 2005.

Next, the idea that "net neutrality" itself is a new concept that only came about with the 2015 order is complete and utter hogwash. And, again, this is something that Pai knows well. If you go back through the previous four FCC chairs -- under both Democrat and Republican administrations -- they all supported net neutrality. They just struggled with how to implement it. In 2004, then FCC chair Michael Powell presented his "guiding principles" for "preserving internet freedom." In that document, Powell laid out an early argument for net neutrality (before the term had really caught on), noting that it was important that broadband providers offer up full access to the entire internet equally.

In that speech, he actually warned of why it would be dangerous for an internet access provider to block a competing VoIP service, and that the FCC "must keep a sharp eye on market practices that will continue to evolve rapidly." And, indeed, a year later, when Powell discovered that a small ISP named Madison River was blocking VoIP calls via Vonage, Powell's FCC fined Madison Riverusing Title II as the justification (the consent decree refers to 47 USC 208, which is part of Title II).

So we had a Republican FCC chair who clearly supported net neutrality and used Title II to make it happen. How the hell can Ajit Pai square this with his claim of no one using Title II or supporting net neutrality until Tom Wheeler's 2015 order?

And we're just getting started. Powell's successor was Kevin Martin -- another Republican under President George W. Bush. Martin also strongly supported net neutrality and, in many ways, kicked off the process that eventually resulted in Wheeler's order. It was under Martin's watch that it was discovered that Comcast was throttling BitTorrent and the FCC issued an order telling Comcast to knock it off. By that point, the FCC had already (see above) made it clear that broadband was not a Title II service, so it relied on other parts of its claimed mandate to issue the order.

That went to court and the court said that the FCC did not have the proper authority to police such a net neutrality violation under the existing rules. The court said that the FCC was trying to stretch its ancillary authority too far -- that even though the FCC wanted to, it could not enforce net neutrality requirements on information services. Basically, the court was telling the FCC it fucked up in reclassifying broadband away from Title II, even as it still believed in the importance of net neutrality (and, yes, again, as a reminder, this was under a Republican FCC).

That's why the next FCC chair, Julius Genachowski, proposed a different set of rules for net neutrality in 2010. However, under tremendous pressure from the broadband providers, Genachowski punted and tried to craft net neutrality rules without reclassifying broadband companies under Title II. Verizon (who helped write the rules) still sued over these new rules... and won. Basically, the court said (again) "Hey, FCC, you clearly want net neutrality, but the only way to do that is to reclassify broadband under Title II."

It was only then, with the next FCC chair, Tom Wheeler, that the FCC actually did so. And that's why Wheeler's Open Internet order has been held up in court already.

But read through all of this carefully, and try to square this with Ajit Pai's Big Lie -- that since 1996, broadband has been treated one way, and there's been no FCC push for net neutrality. The FCC considered broadband covered by Title II for nearly a decade after the Communications Act of 1996, and even as it was reclassifying broadband to be an information service, every single FCC chair expressed strong support for net neutrality and tried to enforce it against those who violated those principles. It was only because the courts pushed back, and noted that if the FCC wanted to enforce net neutrality, broadband needed to be Title II, that the FCC made that switch, supported with both the backing of the court (in those earlier rulings and following the order) and plenty of evidence for why it was necessary.

For Pai to argue that he's trying to bring things back to how they were from 1996 to 2015, he has to ignore all of that history. He's not taking us back to that era. He's doing something worse. He's wiping out the rules that courts said were necessary to enforce the FCC's long-held position on net neutrality. And, more importantly, he's reversed course on the FCC's long-held position on net neutrality.

And he's doing so with his Big Lie that he's merely reverting back to where things used to be.

from the you're-not-helping dept

As the Trump administration guts oversight of some of the least liked and least competitive companies in America in one of the most brazen examples of crony capitalism in tech policy history, ISPs like Verizon and Comcast seem intent on insisting that none of this is actually happening. Verizon, you'll recall, went so far as to publish a comical video in which the company used a fake journalist to try and construct an alternate timeline; one in which Verizon hasn't been trying to undermine net neutrality and a healthy, competitive internet for the last fifteen years:

Comcast lobbyists and PR reps have also been having grand old time pretending that this blatant example of regulatory capture isn't real, and that the complete dismantling of telecom sector oversight won't have a decidedly-foul impact on already frustrated end users and the internet. The company has penned blog post after blog post stating that sure, the FCC may be gutting already flimsy oversight of one of the least competitive sectors in America, but users shouldn't worry because the company's tireless love of consumers will somehow carry the day:

"As we have said previously, this proposal is not the end of net neutrality rules. With the FCC transparency requirement and the restoration of the FTC‘s role in overseeing information services, the agencies together will have the authority to take action against any ISP which does not make its open Internet practices clearly known to consumers, and if needed enforce against any anti-competitive or deceptive practices. Comcast has already made net neutrality promises to our customers, and we will continue to follow those standards, regardless of the regulations in place."

That's the same, debunked bullshit Cohen has been peddling for years. While the FCC hasn't released its full rule-killing order as of this writing (it foolishly thought it could hide it behind the Thanksgiving holiday), folks I've spoken to who've seen the order say the remaining transparency requirements on ISPs are so loophole-filled as to be utterly useless. As such, Comcast is stating it will adhere to them happily -- since there won't be much of anything to actually adhere to. Yes, that's really impressive, David.

Meanwhile, reversing the classification of ISPs as common carriers under Title II of the Communications Act absolutely destroys the rules. You'll recall that when the FCC tried to impose rather flimsy net neutrality rules in 2010, the courts shot down that effort -- making it clear that for real net neutrality, you needed to return ISPs to their 2002-era classification as "telecommunications services." So that's what it did in 2015. Reverse that classification (again), and you've eroded the FCC's authority to police bad behavior by a sector with a rich history of anti-competitive behavior and predatory pricing.

As we've noted previously, the broadband industry's lobbying plan is to pay lobby the government to dismantle the FCC's ability to protect consumers, then shovel all remaining oversight to an FTC that's ill-equipped to handle it. The FTC lacks the ability to craft new rules as needed, and is so under-funded and over-extended that policing ISP behavior will fall through the cracks. That's something former FCC boss Tom Wheeler explained earlier this year:

"In the Trump administration, people are talking about stripping regulatory power from the FCC, and essentially taking the agency apart (including moving jurisdiction over internet access to the Federal Trade Commission [FTC]). “Modernizing” the FCC is the lingo being used. What’s your thought about that?

It’s a fraud. The FTC doesn’t have rule-making authority. They’ve got enforcement authority and their enforcement authority is whether or not something is unfair or deceptive. And the FTC has to worry about everything from computer chips to bleach labeling. Of course, carriers want [telecom issues] to get lost in that morass. This was the strategy all along.

So it doesn’t surprise me that the Trump transition team — who were with the American Enterprise Institute and basically longtime supporters of this concept — comes in and says, “Oh, we oughta do away with this.” It makes no sense to get rid of an expert agency and to throw these issues to an agency with no rule-making power that has to compete with everything else that’s going on in the economy, and can only deal with unfair or deceptive practices.

And that's not the end of it. AT&T is currently embroiled in a case against the FTC that could erode the FTC's authority even further. AT&T was sued by the FTC after it lied to consumers about throttling their connections in the hopes of driving them to more expensive plans. If AT&T wins that fight, any company with a common carrier component (which extends to everything from parts of Google's business to oil pipelines) could dodge FTC accountability. The FTC warned last year that should this come to pass, companies could buy unrelated common carrier subsidiaries just to dodge regulatory oversight.

So again, the goal here isn't just for "more reasonable regulatory oversight" or "slightly less regulatory oversight," the goal here is almost zero oversight of one of the most predatory and anti-competitive legacy business sectors in America. Any claim to the contrary is utterly disingenuous. And if you believe that letting Comcast run amok with neither competitive pressure nor regulatory oversight ends well for anyone not financially benefiting from it, you've fallen down a very deep, dark rabbit hole and should take a long hard look at history.

from the Comcast-knows-what's-best-for-you dept

For years we've noted how large ISPs like Comcast quite literally write and buy protectionist state laws preventing towns and cities from building their own broadband networks (or striking public/private partnerships). These ISPs don't want to spend money to improve or expand service into lower ROI areas, but they don't want towns and cities to either -- since many of these networks operate on an open access model encouraging a little something known as competition. As such it's much cheaper to buy a state law and a lawmaker who'll support it -- than to actually try and give a damn.

And while roughly twenty three states have passed such laws, Colorado's SB 152, co-crafted by Comcast and Centurylink in 2005, was notably unique in that it let local towns and cities hold local referendums on whether they'd like to ignore it. And over the last few years, an overwhelming number of Colorado towns and cities have voted to do so, preferring to decide local infrastructure issues for themselves instead of having lobbyists for Comcast dictate what they can or can't do in their own communities, with their own tax dollars.

Yet another vote on this front was held this week in Colorado Springs. Note that the vote only opened the door to letting city voters consider building such a network, yet Comcast and Centurylink broke local spending records in their attempts to scuttle the ballot initiative. That included numerous misleading videos trying to convince locals that if they voted yes on ignoring the protectionist state laws, the city would struggle to pave roads and develop affordable housing.

"Voters on Tuesday approved a city proposal that would permit the City Council to establish a telecommunications utility to provide broadband services. Unofficial, partial returns as of 12:42 a.m. showed the measure passing with 57.15 percent of the vote. Ballot Question 2B does not require the council to create the utility. It gives council flexibility in setting up a business model for providing high-speed internet, including entering into a partnership with a private company."

Again, this doesn't mean Fort Collins will build a network. But it should be obvious why large duopolies like Comcast (which is actually seeing a growing monopoly in more regions than ever) want to prevent towns from even discussing the idea. Actual competition would put an end to Comcast's long-standing ability to charge more and more money (including usage caps and overage fees) for what's quite literally the worst customer service in America. And as telcos in countless markets refuse to upgrade aging DSL lines, Comcast's power is only growing.

Like net neutrality, for years Comcast successfully framed municipal broadband as a partisan debate to sow discord and stall these efforts. But disdain for Comcast's abysmal service obliterates such partisan divides, and over time people have realized that more creative, government-involved approaches are necessary if we want to compensate for a broken market and improve the country's mediocre broadband. If Comcast doesn't like the idea of towns and cities getting into the broadband business, there remains an ingenious solution to the "problem": provide better, cheaper, and faster service.

from the Comcast-knows-what's-best-for-you dept

We've noted for years how giant ISPs have literally written and purchased protectionist laws in more than twenty states restricting towns and cities from building their own broadband networks. Many of these laws even go so far as to restrict these towns from striking public/private partnerships with companies like Google Fiber, often one of the only options for areas incumbent ISPs have declared not-profitable enough to serve. In this way giant ISPs get their cake and eat it too: they don't have to expand service, but make sure nobody else can either.

Colorado's SB 152 is one such law. SB 152 was a 2005 product of lobbying from Comcast and CenturyLink, and required communities jump through numerous hoops should they want to simply make decisions regarding their own, local infrastructure. Like all such laws the ISP pretense was that they were simply looking to protect taxpayers from financial irresponsibility (an idea often lacking in ISPs' daily business efforts), though it's abundantly clear the real goal was to prop up and protect the dysfunctional broadband duopoly status quo from anything vaguely resembling change or competition.

However, over the last few years ballot initiatives have allowed several Colorado communities like Boulder, Montrose, and Centennial to take back their right to determine their infrastructure needs for themselves and ignore the restrictions SB 152 imposes. Rather unsurprisingly, residents angry at substandard service from the likes of Comcast have been overwhelmingly opting out of the restrictive state law. Again -- not because they think building a network will be fun -- but because they're so disgusted by incumbent service they feel they have no other option.

Fort Collins is the latest city to this week vote on opting out of SB 152. To be clear: opting out of the law's restrictions only opens the door to the possibility of building a network or striking public/private partnerships. But the incumbent ISPs like Comcast that bought the law have spent more than $200,000 to prevent that conversation from even happening:

"Politics is an expensive game, but when an oligopoly is at stake, there's no price tag too high for Big Telecom. In Fort Collins, Colorado—a town of about 150,000 north of Denver—Big Telecom has contributed more than $200,000 to a campaign opposing a ballot measure to simply consider a city-run broadband network. It's the latest example of how far Big Telecom is willing to go to prevent communities from building their own internet and competing with the status quo.

"It's been wild," said Glen Akins, a Fort Collins advocate for municipal broadband. "We're overwhelmed by the amount of money the opposition is spending."

That spending, which is breaking local records, has included TV spots -- funded by an ISP policy front group -- that make numerous, misleading arguments about what locals are actually voting on. The ads try to conflate being allowed to have a conversation about the idea with actually moving forward with a plan. The ads also falsely claim that if the city of 150,000 moves forward with such a project, road repair, affordable housing, and other priorities in the city would suffer (also not true since the project would be funded by service revenues and utility bonds that couldn't be used for these other services):

"Evidence from other cities suggests that a real choice in broadband services could reduce Comcast's revenues by millions of dollars per month," the group, which advocates for municipal broadband projects, wrote in a policy brief. "Competition in Fort Collins would cost Comcast between $5.4 million and $22.8 million per year. In Seattle, robust competition would cost between $20 million and $84 million per year."

It's worth repeating that Comcast could prevent towns and cities from going this route by simply offering better service and lower prices. But in a country where incumbent telecom companies all but own state legislatures (as we just saw in Michigan), it's often much less expensive to write and purchase a law. Or in this case, spend half a million dollars to mislead consumers, preventing them from even having a conversation about creative paths toward better, faster, cheaper broadband.

When the government gutted broadband privacy rules earlier this year, more than thirty states rushed to create their own guidelines for privacy in the modern era. And while having disparate, disjointed state-by-state protections isn't always ideal, it wouldn't have occurred if ISP lobbyists hadn't successfully gutted modest federal protections. With federal lawmakers all but in their back pockets, ISPs like Verizon have shifted their focus to these uncooperative states. Like California, where ISP lobbyists scuttled a new EFF-supported broadband privacy law by claiming it would aid extremists, increase popups, and harm consumers.

But these major ISPs have since been lobbying the FCC, urging it to ban states from passing any consumer protections in the wake of the federal government's apathy-for-hire. Verizon has been telling the FCC that letting states impose their own consumer protections would be a disaster:

"Allowing every State and locality to chart its own course for regulating broadband is a recipe for disaster. It would impose localized and likely inconsistent burdens on an inherently interstate service, would drive up costs, and would frustrate federal efforts to encourage investment and deployment by restoring the free market that long characterized Internet access service."

Verizon lobbyists forget to mention that this is a problem they created when they took aim at popular federal protections. Verizon also forgets to mention that the only reason the FCC crafted privacy rules in the first place is because Verizon has repeatedly shown it couldn't self regulate, having been busted covertly modifying user packets to track users around the internet -- without informing anybody or providing working opt out tools. Verizon also really tap dances around its real goal here: zero oversight whatsoever for what historically has been one of the most anti-competitive companies in American industry.

But it's not just states passing new privacy rules ISP lobbyists and executives are worried about. They're also worried that as the federal government rubber stamps their request to kill net neutrality, that states will pass individualized net neutrality protections as well. As a result, FCC filings indicate that Comcast has also been meeting with the FCC (pdf) urging it to ban states from protecting consumers:

"(Comcast) emphasized that the Commission’s order in this proceeding should include a clear, affirmative ruling that expressly confirms the primacy of federal law with respect to BIAS as an interstate information service, and that preempts state and local efforts to regulate BIAS either directly or indirectly."

ISPs have repeatedly insisted that any attempts to stop states from passing ISP-written protectionist state laws is an assault on "states rights." When those same states actually try to do something that aids consumers, said rights don't receive a moment's consideration. Again, the surface narrative here is that all regulation of telecom duopolies is always uniformly bad, but the end goal here truly is to ensure little to no oversight of some of the least competitive, least liked companies in America (which is frankly truly saying something). Anybody that has witnessed Comcast's behavior and thinks zero regulatory oversight is good idea simply hasn't been paying attention.